When evaluating the issues surrounding the implied consent law, the first thing that you must know is that in California, the legislature sees driving as a privilege, not a right. Therefore to enjoy the privilege of driving on the roads in our state, each driver must agree to certain things related to their driving rights.
One important thing is that if the police pull you over and ask you to consent to an alcohol test because they believe that you are under the influence of alcohol, then you must comply. This gives the police a lot of power because it is often very subjective as to whether or not someone is under the influence of alcohol.
If you do not comply, it will be automatically assumed that you are driving under the influence of alcohol. The Department of Motor Vehicles will suspend your driver's license for one year with no restricted privileges during the suspension period.
This is because if this rule were not in place, then authorities would not have the ability to catch anyone for a DUI. After all, everyone would refuse to cooperate, and the police would have no way to prove their case in court.
This result of losing your driver's license for a year is very harsh and devastating to most people who live in the Los Angeles area. Because it is so hard to get around in Los Angeles, losing your driver's license can cost you many different ways.
If you are pulled over, then you are best served to cooperate with the police because even if you are over the legal limit, the DMV will only suspend your driver's license for a whole 30 days (for your first offense, with a five-month local approval after that) versus the year suspension for refusing to take the blood or breath test when asked to do so by law enforcement.
Test You Must Take Under Implied Consent Law
As you might guess, the implied consent law does have its limits. It is unnecessary to take the field sobriety tests that the police usually try and administer related to their DUI investigation.
Further, you are not required to take the preliminary alcohol screening device (PAS device) test out at the scene of your arrest. Of course, if you have not been drinking any alcohol when the police pull you over, then you may want to take it so that they will let you go and not take you back to the station and ruin the rest of your night.
If the police suspect that you are under the influence of alcohol, you will be required to take either a blood or breath test at the station. The blood test is typically done at the hospital. However, some stations (like Van Nuys) can take people's blood for DUI purposes.
Most of the time, the breath test is usually done at the police station in Los Angeles County. However, beware that many counties like Ventura and Orange are making people take the official breath test out in the field. Again, when you do not cooperate with the police during a DUI investigation, you run the risk that they will try and cheat you and unfavorably write their report.
Another thing that you do not have to do as part of the implied consent law is to give the police any statement. For example, you can simply refuse to answer if they ask how many drinks you had or any other questions designed to elicit an incriminating response.
The police usually try and sneak in incriminating questions during the booking process to seal up any loose ends related to their DUI investigation. The bottom line to remember when it comes to implied consent is that you must take the blood or breath test but not wholly give them all of the other information they need to bury related to their DUI investigation.
Will You Lose All Your Rights If You Don't Comply?
Just because someone made the wrong move of refusing to submit to a chemical test when asked to do so by a law enforcement officer related to a DUI investigation does not necessarily mean that they lose all ability to challenge their DUI case.
There are specific rules that the police must comply with to convict you for a DUI. If they illegally stop you, for example, then everything they find after that would be thrown out, based on the illegal stop. That would include any argument that you refused to take the blood or breath test.
Another way to fight your DUI refusal case centers around the requirements that the police must conform to if they want to utilize the refusal / implied consent law to convict you of a DUI.
They must explain what will happen if you refuse to take a chemical test and then record your response after they ask you to comply. Further, they must explain to you that you have a choice of giving a blood or breath sample to meet their requirements.
I see a lot that the police tell a person that they must take a breath test or lose their license. This is not sufficient for a refusal because they also have to offer them the blood test and let them know that they choose between the two tests. The police are too lazy to go to the hospital and perform the blood test will not let them off the hook for failing to comply with the refusal requirements.